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Even More Than Abortion: The Constitutional Importance of Roe v. Wade and the Right to Privacy

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Roe did far more than establish the right to abortion; it solidified and expanded the constitutional “right to privacy,” which has also been described as the right to autonomy or to be let alone.  This right to privacy is part of the right to liberty protected by the Fifth and Fourteenth Amendments, which state that no person shall be deprived of “life, liberty or property, without due process of law.”

The Constitution’s protection of liberty and privacy underlies the Supreme Court’s recognition of fundamental rights related to contraception and procreation, marriage, family relations, child rearing, and intimacy.   Although the Supreme Court’s recognition of the right to privacy predates Roe, Roe is an important affirmation of and foundation for a broad array of privacy rights.   While not exclusively dependent on Roe, Roe influenced privacy principles in each of these areas—principles that could be undermined if the Supreme Court overturned Roe.

  • The Right to Obtain Contraception and the Right to Procreate: Roe reaffirmed prior decisions protecting individuals’ rights to obtain contraception and to decide whether to bear a child.   Subsequent cases upholding the right to obtain and use contraception, in turn, rely on Roe.  For example, a 1977 Supreme Court case ruled it unconstitutional to prohibit distribution of nonprescription contraceptives to adults by anyone other than a pharmacist and to impose a blanket prohibition on sales or distribution of contraceptives to individuals under 16.  The case explicitly relied on Roe for its central holding that “the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.”
  • The Right to Marry: Loving v. Virginia acknowledged the constitutional right to marry, and Roe affirmed that it is among the fundamental liberties protected by the right to privacy.   Subsequent cases protecting the right to marry have relied on Roe.  For example, a 1978 Supreme Court decision upheld the right of single parents obligated to pay child support to marry without first obtaining the permission of a judge,  and based this conclusion in part on Roe.
  • The Right to Maintain Family Relationships: The umbrella of privacy also protects family relationships.   For example, the Supreme Court relied on Roe to hold that the state cannot interfere in the realm of family life by preventing close relatives from living together.   As the Supreme Court put it, the challenged zoning regulation, which banned a grandmother from living with her grandson, “slic[ed] deeply into the family itself . . . by select[ing] certain categories of relatives who may live together and declar[ing] that others may not.”   The Supreme Court went on to say that courts used Roe to “consistently acknowledge[] a ‘private realm of family life which the state cannot enter.’”
  • The Right to Make Decisions About How to Rear One’s Children: Yet another privacy right is the parents’ right to raise their children according to their preferences, subject to certain limits (such as compulsory school attendance, mandatory vaccinations, or laws criminalizing parental neglect).  The Supreme Court has relied on Roe as important support for the proposition that “[a] person’s decision whether to bear a child and a parent’s decision concerning the manner in which his child is to be educated may fairly be characterized as exercises of familial rights and responsibilities” and thus protected by the Constitution.   While these rights related to parental decision-making were recognized before Roe,  Roe relied on and strengthened the underlying principle—that parenting is best when free from unwarranted government intrusion.
  • The Right to Intimacy: Another privacy right profoundly influenced by Roe is the right to form intimate relationships and the concomitant right for adults to engage in consensual sexual relations in private.  This right was first recognized in a 2003 decision striking down laws that criminalized same-sex intimate activity.   The case proclaimed that “Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person,” such as autonomy in decision-making about intimate relationships.

Were Roe ever to be overturned, it could have ripple effects beyond the right to an abortion.  As privacy cases have recognized, “our laws and tradition afford constitutional protection to personal decisions relating,” among other things, “to marriage, procreation, contraception, family relationships, child rearing” and intimacy.   The right to privacy, strengthened by Roe, supports each of these areas.  Overturning Roe could thus potentially erode the ability of individuals to make highly personal decisions free from intrusive government regulations and harm the overall right to privacy.